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Iraq Invasion Was Unconstitutional

by John C. Bonifaz

October 2002 Iraq Debate: "This is Another Gulf of Tonkin"

While all of the Democratic presidential candidates (except Sen. Joseph Lieberman) criticized President George W. Bush for his unilateral recklessness in starting a war against Iraq, they are missing a larger point: The invasion was not just reckless. It was unconstitutional.

It is time to set the record straight. The United States Congress never voted for the Iraq war. Rather, Congress voted for a resolution in October 2002 which unlawfully transferred to the president the decision-making power of whether to launch a first-strike invasion of Iraq. The United States Constitution vests the awesome power of deciding whether to send the nation into war solely in the United States Congress.

Those members of Congress -- including certain Democratic presidential candidates -- who voted for that October resolution cannot now claim that they were deceived, as some of them do. By unlawfully ceding the war-declaring power to the president, they allowed the president to start a war against Iraq based on whatever evidence or whatever lies he chose. The members of Congress who voted for that October resolution are as complicit in this illegal war as is the president himself.

Imagine this: The United States Congress passes a resolution which states: "The President is authorized to levy an income tax on the people of the United States as he determines to be necessary and appropriate in order to pay for subsidies to U.S. oil companies." No amount of legal wrangling could make such a resolution constitutional. Article I, Section 8 of the Constitution grants the power to levy taxes exclusively to the United States Congress.

Now let us turn to reality. In October 2002, Congress passed a resolution which stated: "The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to 1) defend the national security of the United States against the continuing threat posed by Iraq; and 2) enforce all relevant United Nations Security Council resolutions regarding Iraq." As he determines to be necessary and appropriate.

Congress cannot transfer to the president its exclusive power to declare war any more than it can transfer its exclusive power to levy taxes. Such a transfer is illegal. These are non-delegable powers held only by the United States Congress.

In drafting the War Powers Clause of Article I, Section 8, the framers of the Constitution set out to create a nation that would be nothing like the model established by European monarchies. They knew the dangers of empowering a single individual to decide whether to send the nation into war. They had sought to make a clean break from the kings and queens of Europe, those rulers who could, of their own accord, send their subjects into battle. That is why the framers wisely decided that only the people, through their elected representatives in Congress, should be entrusted with the power to start a war.

The wars of kings and queens of Europe had brought not only havoc and destruction to the lives of those forced into battle and those left to suffer their loss. They had also brought poverty. They were stark symbols that the subjects living under such monarchies lacked any voice or any control over their destiny.

The War Powers Clause of the Constitution emerged from that collective memory: "Congress shall have power...To declare war... " No other language in the Constitution is as simple and clear.

Thomas Jefferson called it "an effectual check to the Dog of war." George Mason said that he was "for clogging rather than facilitating war." James Wilson stated: "This system will not hurry us into war; it is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress; for the important power of declaring war is vested in the legislature at large."

Several years after the adoption of the Constitution, James Madison would write: "In no part of the constitution is more wisdom to be found, than in the clause which confides the question of war and peace to the legislature, and not to the executive department."

Some might ask how George W. Bush's war against Iraq is different from other U.S wars. Congress has not declared war since World War II. While some of the U.S. military actions since that time have received the equivalent of a congressional declaration, others have not. There have been other violations of the War Powers Clause of the Constitution.

But today we face an extraordinary moment in United States history. The president of the United States launched a premeditated, first-strike invasion of another country, the likes of which this nation has never before seen. This massive military operation sought to conquer and occupy Iraq for an indefinite period of time. This was not a random act of raw power. It was the first salvo of a new and dangerous U.S. doctrine, a doctrine which advocates the unprovoked invasion and occupation of sovereign nations. This new doctrine threatens to destabilize the world, creating a new world order of chaos and lawlessness.

Now more than ever, the Constitution and the rule of law must apply. And, now more than ever, the truth must be told. The first lie about the Iraq war was not that Iraq had weapons of mass destruction or ties to Al Qaeda. The first lie told to the American people is that Congress voted for this war.

In the midst of the rushed congressional debate in October 2002, U.S. Sen. Robert C. Byrd (D-W. Virginia) warned that the resolution under consideration was unconstitutional. "We are handing this over to the President of the United States," Byrd said. "When we do that, we can put up a sign on the top of this Capitol, and we can say: 'Gone home. Gone fishing. Out of business.'" Byrd added: "I never thought I would see the day in these forty-four years I have been in this body... when we would cede this kind of power to any president."

The Iraq war is in direct violation of the United States Constitution. The president and the members of Congress who voted for that October resolution should be held accountable for sending this nation into an illegal war.

It is time to hold up the Constitution to the faces of those who dare to defy it. It is time to demand our country back.

© 2004, where this article first appeared as "The First Lie"
John C. Bonifaz is an attorney in Boston and the author of 'Warrior-King: The Case for Impeaching George W. Bush'. (NationBooks-NY, January 2004)

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